Commentary

Frantic over academic discourse on US criminal litigation

By Salahuddin Hisham

Recently Thomas Goldstein, an attorney before the United States Supreme Court, was in town following an invite by the Universiti Teknologi Mara (UiTM) and the Kuala Lumpur Young Lawyers (KLYL), a branch of the Bar Council.

Goldstein used to teach at Harvard University and Stanford University, thus one can say he is conversant, if not an expert, to talk on US criminal litigation.

Though delayed by flight issues and his time limited by the scheduled use of the hall for later, he gave an interesting overview on the subject matter from the perspective of the US Supreme Court.  He gave an update of major issues in criminal law the Supreme Court had to face with.

The media, both mainstream and alternative, were invited.

Despite a quick draw from a cyber trooper that Goldstein was a hired gun, the talk was an academic exercise so common on university campuses.

 Surely, neither the Law Faculty of UiTM nor KLYL, could afford his usual fee. Furthermore, it is nothing new for an academician to share knowledge and experience with other academicians.

The frantic attempts by the opposition on social media to discredit the talk and crowd the message Goldstein made came about from his discussion of the quasi criminal law between civil and criminal, called civil forfeiture law.

Naturally, it attracted attention to get media coverage and invited questions on 1MDB and the 1MDB-related criminal investigation by the US Department of Justice.

No attention was given to discussions on civil law, criminal law, same sex marriage, challenges of technology, jury trial, legal representation, rigid sentencing guideline, search and seizure and excessive fines.

Even a pro-government commentator at a political portal questioned the wisdom of holding the talk. He felt the issue should be laid off so as not to wake up the sleeping giant.

Unfortunately, the days government-linked media could dictate what the public could read and discuss were long over. This issue could not be swept under the carpet but needs to be dealt with.

The opposition has never let up on 1MDB as their cause célèbre.

 In November, they were harping on latest audit report, Bandar Malaysia development, Mutual Legal Assistance, etc. Even Mr. “6-Box” recently announced receiving documents on the proceeding of 1MDB-related court trails in Singapore.

The nervousness of the commentator understandably came about to the coverage given to US Attorney General, Jeff Session speech at the Global Conference on Asset Recovery in Washington.

 The headline “1MDB is Kleptocrasy at its worst” was viralled at a frantic pace by the opposition in the social media and used widely by the usual suspects of 1MDB detractors among the international media. If Goldstein did not talk, will the opposition not viral it?

One financial weekly was invited to Shah Alam but refused because apparently 1MDB would not increase its sales. Yet it gave coverage to Session.  

At the conference, Session mentioned US$4.5 billion was allegedly laundered through a complex web of opaque transactions and fraudulent shell companies with bank accounts in countries like Switzerland, Singapore, Luxembourg and the US.

Goldstein explained that civil forfeiture is a law enforcement tool in which assets alleged obtained by illegally means are frozen, with the owners needing to come forward to claim their rights, failing which the assets will be seized by the US government to be returned to the rightful owner.

In some cases, civil forfeiture is the prelude to a criminal investigation. The civil forfeiture was seen as necessary to prevent the questionable property including money from dissipating.

If the DoJ decides to pursue criminal proceedings, the burden of proof falls on the accuser and that will be a different scenario.

It will be a classic criminal case of getting an indictment in front of a grand jury, bring the case forward and to proof beyond reasonable doubt. DOJ is still on the first batter in the first inning but some Malaysians are already claiming victory for the American law enforcement baseball team.

Goldstein told the audience that actual criminal trial in the US is extremely rare as 9 out of 10 cases end up with a plea bargain.

Politics aside, one doubt that pervades the inquisitive legal mind in Malaysia remains, with the Sessions allegation of the US$4.5 billion leak. 1MDB, the originator of the fund claims to account for all its money. No such thing as RM42 billion “lesap” or disappeared.

 An important point Goldstein mentioned was that the current practice is creating an unfortunate set of incentives to law enforcers. The Supreme Court is now dealing with issues of when the grabbing to the property is going too far.  

 A member of the Supreme Court, Justice Clarence Thomas expressed the opinion that civil forfeiture is problematic since civil forfeiture does not require the standard of proof as high as criminal proceeding. Civil forfeiture is unlike other criminal litigation practices.

 Goldstein said, “… civil forfeiture action (is) against the property and not criminal action against anyone”. He went on to explain that there is no legal proceeding on 1MDB or any individuals. Thus far, no one person is being targeted by DOJ. 

 In the leisure tea break with media, Goldstein was asked whether the reason DOJ took so long was because the complainants claimed money was siphoned from the 1MDB but 1MDB denied losing any money, thus the seized money has no way to return.

 He answered with a simple affirmative, Yes!

 That would not be the message the opposition and detractors of Dato Najib would want to see get disseminated and etched in the mind of voters.

 Goldstein made no effort to claim to be a DOJ official but he is an expert and authority on criminal litigation to state the facts as it is. His resume is available to be seen on Wikipedia. Hope they do not go low to claim the person that came is an imposter. His pictures are all over the Internet.

 And, they will look desperate.  

 One critic already went on the defensive to argue using the argument of legal truth vis-as-vis real truth. Real truth will always be known to god. In the meanwhile, he is admitting the legal truth is does not favour the opposition.

 And, the pro-government commentator made a good case that it is not 1MDB that is problematic but IPIC.

 Resting my case for 1MDB on behalf of Goldstein.   

 

 

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